By Vikki Watt, partner and solicitor advocate at BTO Solicitors LLP
SINCE 2012, the Health and Safety Executive (HSE) has recovered costs from duty holders it considers to be in material breach of health and safety law. The silent majority in many industries appearing to broadly accept the ethical basis of recovering investigation costs directly from non-compliant businesses rather than the ‘public purse’.
For duty holders in highly regulated industries, such as construction, the decision to pay an invoice may be perceived politically and commercially as the preferred option; will challenge be perceived negatively by the HSE and influence the decision to refer the matter for prosecution?
This fear is understandable as inspectors can take into account the attitude of the duty holder as part of their decision making process. FFI sums often seem palpable against the risk of a prosecution and an invariably higher court imposed fine. Astute duty holders have long since sought seek legal advice before making a decision either way.
For many regulatory lawyers giving that advice, the lack of independence of the appeals process has raised concerns. The first stage is adjudicated by the line manager of the investigating inspector who made the decision to serve the FFI invoice. That same line manager may have approved the decision to serve the FFI invoice.
The second stage involves adjudication by a panel of three individuals, two of whom are HSE inspectors (albeit independent of the case). This ‘two to one’ balance is often criticised.
A watershed moment has now been reached, with OCS Group Limited, a facilities management company, successfully challenging the FFI process, both in terms of their individual invoice and the wider appeals process on the grounds of lack of transparency and fairness.
On the eve of their petition for judicial review calling before the High Court in February 2017, a compromise was reached. The HSE undertook to withdraw the FFI from OCS and to revise the second stage of the dispute process throughout the UK. In return, OCS withdrew their petition for judicial review. The English High Court rubber stamped this legally binding agreement.
OUT WITH THE OLD AND IN WITH THE NEW?
The HSE’s decision to move to what they term a “fully independent” costs recovery scheme should peak everyone’s interest. After a period of consultation, the new process for determining disputes should be in place by 1st September 2017.
The High Court expect the process to include the HSE:-
• putting its allegations of material breach of Health and Safety legislation to the duty holder;
• providing disclosure to the duty holder in terms of its’ reasoning;
• permitting the duty holder to respond and make submissions; and
• ensuring the determination of the dispute is Independent and impartial.
This move is to be welcomed and will enable duty holders to make informed decisions about the implications of accepting without qualification that there has been a material breach.
With the bedding in of the new Definitive Guideline for Sentencing in Health and Safety, Corporate Manslaughter and Food Hygiene and Safety Offences reminding courts that evidence of previous wrongdoing is an aggravating factor at sentencing, this is all the more prescient. We may see more challenges being mounted to individual FFI invoices than ever before.